Amend Article 146 to Define Misbehaviour

Article 146 of Ghana's 1992 Constitution should be amended to clearly define "misbehaviour" in the context of removing judicial officers, including the Chief Justice. The adequacy of Article 146 of Ghana's 1992 Constitution, which governs the removal of Justices of the Superior Court, including the Chief Justice, for "stated misbehaviour or incompetence or on account of inability to perform the functions of his or her office arising from infirmity of body or mind" must be examined. Article 146 must provide a clearer definition, considering its implications for judicial independence, public trust, and constitutional integrity.

Article 146 grants broad discretion raising, questions about whether the application of it requires a more precise legal standard. Article 146(1) establishes the grounds for removal, while subsequent clauses outline a rigorous process: a petition, presidential prima facie review, a committee inquiry with at least two Supreme Court justices and three other members, and mandatory presidential action on the committee’s recommendation based on Article 146(8). However, the lack of a specific definition for "misbehaviour" leaves its scope to interpretation and probability of abuse.

The ambiguity of "misbehaviour" allows varying interpretations; financial misuse and the exercise of administrative powers excessively were deemed sufficient for the removal of the suspended CJ. A defined standard specifying corruption, bribery or gross ethical breaches would ensure uniformity across cases, preventing arbitrary or politically motivated removals. This clarity would also guide petitioners and committees, reducing legal uncertainty. Without a precise standard, almost any discretionary action of a Chief Justice could be construed as misbehaviour. This opens the door to politically motivated removals, undermining judicial independence.

The current vagueness may lower the bar for removing a Chief Justice, a position central to judicial independence. The removal of the CJ, based on what some might view as administrative lapses rather than systemic corruption, suggests a need for a higher evidentiary threshold. A well-defined term could require multiple instances or criminal intent, protecting judicial officers from premature ousting.

High-profile removals can erode trust if perceived as politically driven. Lack of detailed and publicly available evidence fuels speculation about the use of removals to achieve political goals. A clear definition, perhaps including public disclosure requirements could reassure citizens that removals reflect serious misconduct, not expediency. A heavily broad scope risks misuse against judges, especially in polarized political climates. A petition without a defined standard could be exploited. A tighter definition would filter out frivolous claims ensuring only egregious breaches trigger the process, thus preserving the judiciary’s autonomy.

However, critics argue that the current broad flexibility allows the committee to adapt to diverse misconduct, as demonstrated by the recent case where financial and administrative issues were central to the committee’s determination. A rigid definition might exclude unforeseen scenarios, limiting the Constitution’s adaptability to evolving judicial challenges.

The committee’s composition, two Supreme Court justices and independent members, reflects expertise to interpret "misbehaviour" case-by-case. This means over-definition could undermine this role, reducing the process to a mere mechanical checklist rather than a reasoned judgment, as seen in the current inquiry’s nuanced findings.

The multi-step process (petition, prima facie review, inquiry, presidential action) already provides checks against abuse. The current case followed this structure, with a balanced committee and consideration of the removed CJ’s response. Amending Article 146 might add complexity without addressing root issues like evidence quality, which remains a concern regardless of definition.

Other jurisdictions offer insights. India’s Constitution (Article 124(4)) allows judicial removal for "proved misbehaviour or incapacity," with impeachment requiring a two-thirds parliamentary majority and often evidence of corruption. The U.S. Constitution (Article III) implies removal via impeachment for "high crimes and misdemeanors," a high bar interpreted as serious abuses. Ghana could adopt a hybrid approach, listing fraud, gross negligence as misbehaviour threshold while retaining flexibility, balancing specificity with adaptability.

The former CJ’s removal case highlights the current system’s strengths and weaknesses. The committee’s findings, based on leaked documents shared on some social media platforms, cited misuse of funds for family travel and an arbitrary transfer which aligned with "misbehaviour," but there are questions about robustness of the system used. If these acts were isolated, some might argue sanctions short of removal, example censure was adequate. There is a need for a standard that reflects the Chief Justice’s unique role as head of the judiciary, an arm of government.

The grounds for the removal of the CJ are indeed below the expected standard for such a drastic action on the head of a key arm of government. These grounds are not egregious misconducts warranting the removal of the head of the judiciary. The travel expenses involving family members on private trips may possibly be a common perk for some political elites in the other arms of government, and not outright corruption. Employee transfers and appointment issues raised, unless proven malicious, are part of the broader discretionary acts undertaken by heads of many public agencies in Ghana.

There should be a public debate over amending Article 146 which reveals a tension between flexibility and precision. Defining "misbehaviour" could enhance clarity, raise the removal threshold, and bolster public trust, addressing concerns from the recent case where the depth of the threshold for removal is questionable. However, the current system’s adaptability and safeguards suggest that over-definition might constrain judicial discretion unnecessarily.

A constitutional review offers the best path forward. A review, conducted by an independent commission with judicial, legal, and public input, could assess Article 146’s application, evaluate global best practices, and propose refinements whether a defined list of misbehaviour examples or enhanced procedural transparency are satisfactory. This approach respects the Constitution’s established framework, and ensures any revision reflects a national consensus. Given the judiciary’s pivotal role and the recent removal’s implications, a comprehensive review would allow time for evidence analysis and stakeholder engagement, strengthening Ghana’s constitutional democracy without undermining its judicial foundation.

While the committee deemed the reasons for the removal of the Chief Justice sufficient under the vague constitutional language of discretion and interpretation, the reasons appear below the rigorous standard required for ousting the head of the judiciary, prioritizing politics over profound ethical breaches. The current case underscores the need for clearer definition to safeguard judicial tenure without shielding misconducts.

Ghana needs a constitutional review of Article 146 that balances precision with flexibility, ensuring judicial accountability without undermining independence.

Emmanuel Kwabena Wucharey
Economics Tutor, Advocate and Religion Enthusiast

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